Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-03-01
Last-Modified: 1999/06/15

20 Adar Bet (26 March 1962)

President:  Please proceed, Mr. Hausner.

Attorney General:  With the Court's permission, the next
argument on the part of the Defence is that an Israeli Court
has no jurisdiction to judge Adolf Eichmann, because he was
brought here against his own free will. When someone is
brought to trial under a valid law, the Court does not
investigate how the person before it was brought there and
it is not for the Court to consider whether this was of his
own free will or not, whether he went to the police to atone
for his crime, because his conscience was troubling him, or
whether he was found by investigators who tracked him down
and found him out. Nor is it a matter for the Court whether
this was within the boundaries of the State or outside it.
None of this affects the Court's competence. The method and
legality of the individual's arrest are not matters to be
investigated by the Court.

In the District Court's Judgment, paragraphs 41 to 53
examine in great detail the various precedents concerning
this matter, and I shall not go over this material again. I
shall simply make a few comments. In addition to the leading
American judgment, Ker v. Illinois, the District Court's
Judgment also refers to two other American cases which
relate to the matter before us. In the case of Pettibone vs.
Nichols, 1906 51 L.Ed. 148, the appellant, Pettibone, argued
that he had been arrested by the State of Idaho through
trickery on the part of the Sheriff, and that he was brought
to that state from the State of Colorado in an illegal
fashion and as a result of deceit, and that he should not be
considered to be present in the State of Idaho, because his
presence there was not as a result of legal action.

Justice Silberg:   In which paragraph is this mentioned?

Attorney General:  It is mentioned as one of the general
references, Your Honour.

President:  Only the name of the case is given, but what
about the details?

Attorney General:  In Paragraph 46 only the name is given.

The Court, following a series of other cases, ruled that
there is no legal appeal under the laws of the United States
and its Constitution which would prevent putting on trial a
man who has transgressed the laws of the United States, even
though he was brought before a court by an act of force.
Furthermore, even if the circumstances in which he was
brought to justice are likely to lead to the kidnappers
themselves facing criminal charges or being liable in
damages, even then this would not prevent an accused from
being brought against his will before a court in the place
where he is present.

President:  It seems to me that the last part of what you
said is a citation from Ex parte Lopez, where Mexico was
involved.

Attorney General:  That is correct.

The Court added on page 215 in Pettibone v. Nichols:

     "It is said that the present case is distinguishable
     from the Mahon Case in the fact that the illegal
     abduction complained of in the latter was by persons
     who neither acted nor assumed to act under the
     authority of the state into the custody of whose
     authorities they delivered Mahon; whereas, in this
     case, it is alleged that Idaho secured the presence of
     Pettibone within its limits through a conspiracy on the
     part of its governor and other officers. This
     difference in the cases is not, we think, of any
     consequence as to the principle involved."

Justice Agranat:  Your last point, that even if the
abductors committed an offence, that is taken into account
in the Frisbie case, I believe.

Attorney General:  Yes, that is explicitly referred to -
"kidnapping."

Counsel for the Defence is not right when he argues that in
all of the judgments on which the District Court relied the
accused were already under arrest or in custody, from where
they escaped and were forcibly returned in order to be tried
in the state in which they committed the offence. That is
not the case. The precedents do not in fact deal with
individuals who escaped from custody, but rather with
persons whose crimes were discovered when they were abroad,
and who were brought from there against their will to the
jurisdiction of the Court. I wish to emphasise this point,
in order to prevent any misunderstanding of the term
"fugitive from justice."

In another case, also referred to by the District Court but
not elaborated on - and I am referring to United States v.
Insull, 8 Federal Supplement 310 - the facts were as
follows: An American subject, sailing the Bosporus on a
Greek ship, was forcibly abducted and taken to Turkey, where
he was imprisoned and, in the absence of any arrest warrant
from the judicial authorities, handed over to the American
authorities. He was then tried in the United States.
Although his arrest by the Turkish police was carried out
following an application from the United States Government,
there was no extradition treaty. The accused was put on
trial simply because he was physically present in the United
States at the time that he was brought to justice. It was
argued that in this way the rights of the abducted man were
infringed, together with those of the two foreign countries:
Greece, from the deck of whose ship he was removed, and
Turkey, from whose soil he was transferred to the United
States. The American court utterly rejected this argument,
ruling that it would not examine in depth the issue of how
the accused had been brought before it. It states on page
312:

     "The defendant contends that a treaty is involved, and
     that the government of the United States of America
     cannot enter the jurisdiction of a sovereign nation
     with which it had a treaty governing the extradition of
     fugitives from justice, and, without pretending to
     comply with the proceeding provided for in such treaty,
     by its agents forcibly seize an alleged fugitive, and
     by force and without the consent of such alleged
     fugitive bring him into the jurisdiction of a District
     Court of the United States of America for trial."

And on page 313:

     "If the rights of the defendant have been violated, or
     the peace or dignity of the Hellenic Republic or Turkey
     trespassed upon, that is not a matter for this court,
     even assuming that the offense for which the defendant
     stands charged is not within the treaty, if one
     existed, between the countries; and the mere fact, if
     true, as stated by defendant, that he was kidnapped
     from the Hellenic authorities, would not give this
     court power to examine such fact, and, if true, release
     the defendant. The court has no such power. That is a
     matter which rests between the defendant and the
     parties abducting him, or between the political powers
     of the governments of Turkey or the Hellenic Republic
     and that of the United States.
     
     "If either the Hellenic Republic or Turkey, by proper
     complaint, sought to vindicate its laws by protesting
     against the kidnapping of this defendant within its
     territory, it is reasonable to assume that the United
     States would enter into such negotiations with those
     countries as would secure justice for all parties
     concerned."

This is true also in the case before us. The Government of
Israel entered into negotiations with the Argentinian
Government, from whose territory the Accused was removed,
and after a discussion there was an exchange of Notes, as
cited in the Judgment. Consequently, not only did the
Argentinian Government accept the situation - at least by
implication, it also dropped any complaint it might have had
in this particular matter.

President:  Mr. Hausner, two cases are cited in the
Judgment, one of which is Chandler, which seems to serve as
an authority for there being no difference between a
fugitive from justice and an individual who is not a
fugitive. What were the facts in that case? In the Judgment
it is implied that Chandler is an authority for there being
no difference between a fugitive from justice and someone
who is not a fugitive. Is this really an authority?

Attorney General:  To some extent. Chandler was an American
who was led astray by Nazi propaganda and moved to Germany,
where he was active on behalf of the Nazis; he was
imprisoned by the United States military authorities and
brought to America for trial.

It is not correct that the Accused is entitled to be tried
by a German judge specifically. He is a fugitive from
justice and is on the list of war criminals drawn up by the
International War Crimes Commission.  He went into hiding in
Argentina and lived there under an assumed name. Now that he
has been brought to justice, to some form of justice, he
remembers that he would prefer to be tried by a judge of his
choice, a zustaendiger Richter (competent judge). It is not
true that he took with him to Argentina the right to be
tried by a German judge, of all judges. There is no such
right in international law. Any one of the states in which
he committed his crimes, any of the peoples whom he harmed,
is entitled to demand his extradition, and any state which
is a member of the United Nations and which is faithful to
its undertaking under the U.N. Assembly Resolution, was
duty_bound to extradite him.

He is to be tried as a fugitive from justice. This is true
according to the laws of 18 states, each of which is
entitled to try him, from all of whose laws he has fled and
hidden. But no state is more competent to try Adolf Eichmann
than the State of Israel; because he did not persecute the
Jews who were citizens of Poland, Holland, Hungary, Denmark,
France, Belgium, the Soviet Union and a dozen other
countries as subjects of those countries - he persecuted
them as Jews. He was not fighting on a front against all
these individual countries, but rather he was fighting on
one single front, the anti-Jewish front. The jurisdiction of
the Jewish State to try him is well-founded in law, and this
jurisdiction is not limited under international law, as
argued by Counsel for the Defence.

The obligations created by international law and the
severity which the law directs against individuals in
respect of crimes against humanity, war crimes, crimes
against peace, were not accompanied by any right to be
judged by judges chosen by the offender. They were
accompanied by one right: for the person to be put on trial
and not be destroyed like a wild animal, wherever he happens
to be. That was Adolf Eichmann's only right, to have a fair
trial and to be judged according to judicial principles. The
State has conferred this right on him without qualification.

It should also be noted that in the debate held in the
Security Council, when it became known publicly that Israel
was holding Adolf Eichmann and would be putting him on trial
before its courts, Argentina did not at that point demand
Eichmann's return, and its representative refused to define
the term "appropriate reparation" which was included in the
Security Council's decision on this matter.

We have here, available for the Court's inspection, the
official versions of the Security Council resolution and the
United Nations debates.

Justice Silberg:  I believe this is cited in the Judgment.

Attorney General:  Not everything, only briefly.

I would also wish to add that the United States
representative added that the actual debate and Israel's
apology were the appropriate reparation for Argentina, and
therefore he said that he would be voting in favour of the
resolution, and he was joined by the United Kingdom
representative. There is no conflict of authority between
the State of Israel and any other State on the right to try
Eichmann, and there was no such conflict when the indictment
against him was submitted. No state applied to try him apart
from the State of Israel, which wished and was entitled to
do so. No one asked for his extradition nor did any state,
including the state in the shadow whose laws he is trying to
seek refuge - I am referring to West Germany - apply to try
him for his crimes.

Consequently, I would request that no consideration be paid
to the groundless argument concerning an application to a
German administrative court, which is intended solely to
obtain some delay or postponement.

Nor is there any need to hear expert witnesses on any
alleged additional demands on the part of Argentina. There
are no such demands. Under international law, the outcome of
the exchange of Notes is complete acceptance of the
resultant situation.

In this respect, I would draw the Court's attention to the
article by MacGibbon in The British Year Book of
International Law, 1954, entitled "The Scope of Acquiescence
in International Law," pp. 143 ff.

Counsel for the Defence made certain points and objections
concerning the law of evidence and procedural arguments. I
shall deal with this briefly. All of the material in our
possession was made available to the Defence. Not one single
piece of evidence, not one single witness, came before the
Court without the Defence being given reasonable prior
notice, as we are required to do under Israel's laws. The
Accused was given every opportunity to examine fully all
documents and to react to them before they were submitted.
The exhibits submitted by the Accused include dozens with
which we provided him, because they were collected during
the phase of the police investigation and then submitted by
the Defence. The witnesses and the documents are to be found
in Israel, and are present in Israel in larger number than
anywhere else. This was a marked feature of the trial - that
there was a number of living witnesses who testified about
the Holocaust on the basis of what their own eyes had seen,
what their own ears had heard, what they had personally
experienced and suffered. These witnesses are here in
Israel, and the courts which try war crimes in other
countries, including Germany, need witnesses who live in
Israel. This is where the document centres are to be found,
above all the major Yad Vashem collection, which contains
important material.

The witnesses who were examined abroad were not examined
after pressure was put on me, as was argued by Counsel for
the Defence, but rather at my suggestion.

President:  I do not exactly understand your last point.
Attorney General:  Counsel for the Defence claimed that it
was only when I had no choice that I agreed that some
witnesses should be examined abroad. I argue that this is
not true. At the beginning of the trial, it was my
suggestion that we should act in this way and adopt this
procedure. I have no control over the procedure followed by
the judge in Bremen, and if Counsel for the Defence has
complaints about this procedure, apparently this is the
custom in that country.

President:  In relation to which witnesses are the comments
made?

Attorney General:  Becher, who received the questions in
advance.

President:  But as far as I am aware, Becher is not
mentioned in the Judgment.

Attorney General:  Even if he is mentioned, his testimony
provides no basis for any finding whatsoever.

Justice Silberg:  I gather that Counsel for the Defence
wishes to take advantage of this point. If it has any value,
it is for Counsel for the Defence only.

Attorney General:  If the Court were to believe and to rule
that one of the witnesses was lying, and if this witness had
said something to the Accused's advantage, then a complaint
would be justified, because the Court cannot decide, not
having seen the witness, not having heard him and not having
gained a direct impression of him. But this was not the
situation here, there was no one who was prepared to support
the "little transport clerk" version, the argument of "a
small cog who is somewhere in the distance, on the margins
of the extermination activities." And therefore no injury
whatsoever was caused to the Accused by the fact that the
witnesses testified there and not here. And if indeed they
wished - as Counsel for the Defence argues - to shift the
guilt and exonerate themselves, it might be assumed that
this would have become more obvious in an examination before
a Court in Jerusalem than in Germany with in camera
proceedings in the seclusion of a judge's chambers in the
absence of the press and the public. If they had really
wanted to play down their own contribution and to assign the
guilt elsewhere, precisely this would have become very clear
here. And in this sense it helped the Defence that the
witnesses testified there, and any desire on their part to
evade guilt and shift it to others, were it to exist, would
be likely to be less evident.

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